Mining and exploration activities can impact a wide range of stakeholders. Mining is not undertaken in a bubble but often overlaps with existing landowners, traditional custodians, and local communities.

As most Australians appreciate, the impact of mining can be positive. The benefits of mining projects can include the large amount of taxes they generate to fund new government projects and developments. Mining can create jobs, both within the mining and in services that cater to the mining sector and mining populations. It can lead to improved infrastructure and help to increase local revenue.

Managed improperly, the impact of mining can also be destructive. Perceived risks include environmental risks, increased cost of local property and services, and impact on other sectors, such as tourism or agriculture.

In this environment of perceived benefits and risks, stakeholders expect to have their say, whether they are for or against mining and exploration. Indeed, a CSIRO survey in 2018 found that three-quarters of Australians believed exploration and mining companies should gain consent from local communities prior to development.

Governance of community consultation

As your mining lawyer will tell you, the need for Community Consultation is enshrined in the regulatory mechanisms across Australian states and territories that relate to engagement and accountability.

In Australia, this process often involves the relevant regulatory body seeking comment on mining applications such as for a mining lease or retention lease, as well as an application for a change in operations. These notices may be posted on the website of the regulator and in local newspapers and government publications, and often through the local council.

A mining or exploration company working in the Australian mining and resources sector will typically have to develop a Community engagement plan where a program of work is required.

As we know well here at Hetherington, the legal environment surrounding consultation undergoes persistent change. For example, late in 2022, The Department of Regional NSW – Division of Mining, Exploration, and Geoscience introduced changes to community consultation requirements.

This meant that rather than submitting community consultation reports annually, holders now have to make this information publicly available in a bid to increase transparency.

The business case for community engagement

There is a moral obligation, as well as a regulatory obligation, to engage with communities. What can be easily missed is that it also makes strong business sense to engage with communities. By engaging with communities and undertaking the appropriate degree of community consultation, an exploration and mining company can establish a social licence to operate.

Business success can hinge on these productive community relationships; if they are absent, and a community rallies against mining, this can lead to obstructions and a failure to operate as intended on your mining and exploration project.

How will participation look?

This will depend both on your jurisdiction, your intended project, and your community. However, the consultation can take on many shapes or forms, often dictated by the relevant regulatory mechanism.

It can involve informing the public; seeking their feedback on proposals or analysis; working with the public in a direct manner so their voice guides the project and involving them in the decision-making process.

To be effective, consultation may benefit from a number of factors. These include:

• Beginning the consultation process early. If you are perceived to be acting before you have consulted, operations can easily appear secretive or suggest that you are hesitant to engage the public. Proactive community engagement builds trust.
• Involve all community members or their representatives. Aim not to miss a group, and don’t single out a group on the basis that it is the most vocal; or that it is the most straightforward and compliant, or educated.
• Be willing to be processed and relationship-focused. Mutual understanding is key to a successful consultation.

The importance of meeting obligations

With the need for community consultation enshrined across Australian jurisdictions in all states and territories, tough penalties can await those who fail to meet their community consultation requirements. Your tenure could be on the line if you fail to follow the due processes, practices, and strategy.

With ongoing changes to the regulatory system too, there is a risk of your current processes – even if well established at the time – falling out of date and losing their relevance and in fact exposing you to undue risk.

Hetherington is a leading tenement management company that has helped many exploration and mining companies to navigate the complexities of environmental and mining law within the Australian mining and resources sector.

Our team can help you to review your community consultation practices and strategy to ensure tenement compliance; audit tenements to ensure you are meeting your obligations; negotiate access and compensation with private, Government, and indigenous landowners; assist with preparing and lodging statutory reports; and more.

For more information on our services, browse the website or contact our team at your local office.

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